Trust

This is an action for damages for personal injuries suffered by plaintiff when a milk bottle she was handling in her kitchen broke as she was in the process of setting it down on a tile drainboard.

Defendants are Arden Farms Company, hereinafter called “Arden,” and Owens-Illinois Glass Company, hereinafter called “Owens.”

Owens manufactured a milk bottle which Arden filled with skim milk and delivered to plaintiff by placing it on her porch *220 on a Thursday morning. Plaintiff took the milk bottle into her home and stored it in a refrigerator.

On the Sunday following the Thursday delivery of the bottle of skim milk here involved, plaintiff was in the process of setting the bottle, half filled with milk, down on a tile drainboard when it broke, and she sustained cuts about the wrist.

The trial court granted defendants’ motions for a nonsuit. Plaintiff appeals from the judgment, presenting these questions :

No. A plaintiff seeking to invoke the doctrine of res ipsa loquitur against a defendant who at a time prior to the accident has relinquished all control of the instrumentality causing the injury must affirmatively establish that the condition of the instrumentality has not…

I concur in the judgment insofar as it sustains the granting of nonsuit as to Owens-Illinois Glass Company, but disagree with a similar conclusion reached in connection with defendant Arden Farms.

The majority concludes that plaintiff failed to present any evidence to negate maltreatment of the bottle by her and her family after its delivery, and thus, the doctrine of res ipsa loquitur does not apply. It is also held that there is no evidence to support a finding of breach of warranty since no *226 defect in the bottle had been shown to exist. On the basis of the facts as stated in the majority opinion these conclusions are warranted. However, it is submitted that there are material omissions in the majority’s factual statement, which, when, viewed according to the rule on nonsuit, renders such conclusions erroneous.

The record reveals that plaintiff established the following uncontroverted facts. The bottle in question was manufactured by Owens sometime in 1953; part of the manufacturing process required that Arden’s name be written on the bottle. Shortly thereafter the bottle was sent to Arden and used in their business of delivering mill? for the months preceding the time of…

The evidence that plaintiff handled the bottle carefully and that the impact causing it to break was only a mild one was sufficient to support a finding that it was defective when Ardens Farms delivered it to plaintiff. It is reasonable to infer not only that this impact occurred when plaintiff placed the bottle on the drain board but that it was no more severe than the normal impact attending such placement. Therefore plaintiff’s expert could justifiably conclude that the bottle was defective in some way at the time it broke, even though he could not determine the nature of the defect from an examination of the broken bottle. It could reasonably be inferred that no other member of plaintiff’s family handled the bottle, since she was the only one who used skimmed milk and it was her custom to identify the bottle of such milk with a rubber band and to set it to one side of the milk-bottle tray in the refrig *236 erator. Conceivably others in the family could have struck the other bottles against that one; but that possibility is remote given the evidence that no member of the family had ever broken a milk bottle. Milk bottles are ordinarily sturdy enough to withstand the impacts of…

It is clear that, as to Owens, the judgment of nonsuit should be affirmed. The parties stipulated that plaintiff had no cause of action against Owens for breach of warranty, and she failed to make a prima facie ease against this defendant based on negligence. Although there is substantial evidence that the breaking of the bottle resulted from a defect in it, there is no evidence from which it can be inferred that this defect was present when the bottle was delivered by Owens to Arden, who thereafter used it for several months before it broke.

With respect to Arden, however, I am of the view that the judgment of nonsuit should be reversed, because the evidence is not insufficient as a matter of law to sustain plaintiff’s cause of action for breach of warranty. As shown by the discussion in the concurring and dissenting opinions of Justices Carter and Traynor, there is testimony from which the jury could reasonably infer that the bottle was not improperly handled in plaintiff’s home and that when the bottle was delivered by Arden it contained a defect which caused it to break. If an inference to that effect were drawn by the jury, the defect in the bottle would constitute a breach…

McCOMB, J.

This is an action for damages for personal injuries suffered by plaintiff when a milk bottle she was handling in her kitchen broke as she was in the process of setting it down on a tile drainboard.

Defendants are Arden Farms Company, hereinafter called "Arden," and Owens-Illinois Glass Company, hereinafter called "Owens."

Owens manufactured a milk bottle which Arden filled with skim milk and delivered to plaintiff by placing it on her porch on a Thursday morning. Plaintiff took the milk bottle into her home and stored it in a refrigerator.

On the Sunday following the Thursday delivery of the bottle of skim milk here involved, plaintiff was in the process of setting the bottle, half filled with milk, down on a tile drainboard when it broke, and she sustained cuts about the wrist.

The trial court granted defendants' motions for a nonsuit. Plaintiff appeals from the judgment, presenting these questions:

No. [1] A plaintiff seeking to invoke the doctrine of res ipsa loquitur against a defendant who at a time prior to the accident has relinquished all control of the instrumentality causing the injury must affirmatively establish that the condition of the…